During the probate process, you might find that the last will and testament of the decedent seems suspicious. For instance, perhaps you or someone else from the family has been completely removed from the will without provocation or justification. Or maybe the will seems vastly different from what the decedent had expressed when he or she was alive. This is especially challenging if late in life the decedent had begun losing many mental faculties or had remarried. But before you jump to conclusions and immediately contest the will, you need to know from the start whether you and your case even qualify for such legal actions.
Who Has the Legal Right to Contest a Will?
Essentially, there are two types of people who are permitted by law to contest a will:
Disinherited Heirs-at-Law—These are relatives who would have stood to gain something from the decedent’s estate had there not been a will. In those cases, proper intestate succession rules in Illinois would have applied and the disinherited heir-at-law would have gained something from the death. However, if there is a will and this heir-at-law is not included in that will, he or she is legally permitted to contest the will.
Beneficiaries or Other Representatives Named in a Prior Will—If a prior will from the decedent had provided for specific beneficiaries or other parties, but later iterations of the will had removed them from the decedent’s last wishes entirely, these beneficiaries or parties are allowed to contest the will.
On What Grounds Can a Will Be Contested?
In Illinois, there are three primary reasons to contest a will:
Impaired Mental Capacity Upon Making the Will—If the decedent was not of sound mind upon creating the will, he or she might not have realized and understood in full what was being agreed to within that will. In those cases, the decedent lacked the mental faculties to fully comprehend the will.
Undue Influence—Prior to death, the decedent might have been coerced, influenced, or otherwise forced or tricked by other people into altering the will in ways he or she never intended.
Fraudulent Signatures or Documentation—Someone might have changed the will without the decedent’s knowledge or after the decedent’s death, forging his or her signature and/or changing its terms, thereby creating a fraudulent will.
In addition, if the will was not created in accordance with Illinois law, it can be invalidated. For instance, Illinois law requires witnesses and a notary. If the will lacks this, its legitimacy would be called into question and can no longer be considered the last will and testament of the decedent, in which case the estate will be divided in accordance with the appropriate intestate succession guidelines.
Words of Caution About Contesting a Will
Keep in mind that even if you meet the aforementioned requirements for contesting a will, it is still a long road to proving the illegitimacy of the will. Overall, it is both very difficult and expensive to collect the evidence necessary to invalidate a will, no matter the grounds. In addition, “No-Contest Clauses” are permitted in Illinois wills, meaning that if a beneficiary contests a will, that beneficiary stands to lose anything promised to him or her through the will as it was written. This means that you need to be certain you have a strong case to contest the will; otherwise, you will lose your inheritance. In contrast, if you already stand to gain nothing from the will as it is, you have nothing to lose.
Contact a Downers Grove Estate Planning Lawyer
When you have a hunch that something questionable might have happened with regards to the creation of your relative’s will, it is important to seek the legal advice of a qualified DuPage County last will and testament attorney. The knowledgeable professionals at SBK Law Group will review the details of your situation so you know if you have a strong case to contest that will. Call our office today at 630-427-4407 to schedule your private consultation.